Saturday, February 25, 2017

Identity, Gender and the Law

Bathroom Law, or Lex Lavacrum as I called it in an earlier post, again consumes the nation.  The bathroom, specifically the public bathroom (as opposed to the private bathrooms located in our residences) is it seems the "darkling plain" on which the battle of gender identity and the law will be fought here in God's Favorite Country. our Great Republic.  At least, it is the battleground in which we take the most interest at this time.

I can't help but feel that this does us no credit.  That is to say, that our abiding and intense concern over those with whom we will defecate and urinate seems, well, unworthy.  Granted, these are acts which normally are not matters in which we take pride or of which we boast, and so we're not inclined to put them on display.  Many of us find the acts embarrassing.  Some find them shameful.  Nevertheless, they are acts in which all of us must engage; nobody will be surprised to find them being done in a public bathroom.  Is the fact that we don't like to do them when those with particular genitalia are present something which merits the imposition of a law?

So, our fascination with Bathroom Law seems to me unseemly.  But that's not really the issue I wish to address in this post.  Rather, I'd like to consider gender from the legal standpoint, or in any case from a legal standpoint.  When I do so, I think certain problems may arise in creating, enforcing and interpreting law when it comes to gender issues.  Have these already been addressed?

The photo above is of a statue of the ancient Egyptian Pharaoh Akhenaten.  He was remarkable in many ways.  One of the ways in which he's been remarked on is with regard to his appearance as depicted by the ancients.  That appearance is said by some to be unusual in several respects, one of which is that it is androgynous, of indeterminate sex due to the wide hips, for example.  It seems to be the case he's depicted in a style different from that of other pharaohs of other times, that his is a more realistic portrayal or it's possible that he was deliberately depicted in this particular way for religious or other reasons.   We don't know, really.  The famous bust of his wife Nefertiti, though, is remarkable only for its beauty. If the artists of the time were portraying royalty more realistically that at other times, it seems she was lovely and he was somewhat peculiar.

Androgyny isn't the same as identity or gender, even now, at least not necessarily.  And we don't know what if anything it meant in ancient Egypt, if we're honest with ourselves.  Whether it led the ancient Egyptians to question gender in any respect is, as far as I'm aware, unknown.  I think it's reasonable to believe that the ancients thought of sex generally differently than we do, and suspect that it wasn't a concern of the kind it is now.  I have no idea whether there was any concern in ancient times over where and with whom one expelled waste, but also suspect there wasn't the kind of concern then that there is now.  The Romans, we know, had public latrines, but I'm unaware of any source or evidence indicating they had different ones for each sex.  I doubt they did.

The Romans and other ancient cultures distinguished between male and female genders, though.  That seems clear enough.  Are we being asked not to do so now?  If so, are we being asked to do so only in certain respects or entirely?

Precisely what is gender discrimination if it is to be prohibited by law?  It would seem one would first have to determine what "gender" means.

From the legal point of view, I find myself uncomfortable with the tendency to say that a person "identifies with" a certain gender, or no gender at all.  If identity is how we think of ourselves, it isn't clear to me that this is something that is necessarily to be protected by the law.  A person may think of himself/herself as many things but it doesn't follow the law should treat them as what they think they are; obviously, for example, the fact that particular people may identify themselves as Nietzscheian super humans and so beyond the law doesn't mean that the law shouldn't apply to them. If person X identifies with being black, but is in fact Caucasian, would discrimination against that person because of such self-identification be actionable?

Gender apparently according to current definition is something which need not be associated with the possession of particular genitals.  It is thought to be, like so much else is thought to be these days, a social construct.  I'm not as dismissive of social norms as some, but whether the law should strictly adhere to them or protect or enforce them is a separate issue.

For good or ill, though, the law is something which relies a great deal on definitions.  Especially from the standpoint of enforcement, it's essential that it be reasonably clear how the law is to be applied.  If gender cannot be determined by reference to genitals or something else which can be established with relative ease like sexual organs, how can it be established? 

Is it established merely by whatever someone may think they are, or say they are?  Are we to be prohibited from discriminating against people because they say they are of a particular gender?  Are there physical or psychological tests that determine one's gender, or lack of it?  If there are, can these tests be practically applied by, e.g., an employer or landlord?  A person may be mistaken in what a person thinks, though, and there are problems with applying or interpreting law based solely on what someone thinks at a particular time or in particular circumstances.  Is what someone thinks the determining factor when it comes to gender, i.e. is it not possible for someone to be mistaken about their gender?

The law hasn't yet progressed to the point where it can be established what someone thinks, so it must refer to what people say or do.  It would seem then to be limited in applying any law of gender discrimination based on what a person claims or does or how a person appears.  But surely, one may appear to be a man and still identify as a woman, and one may appear to be a woman and identify as a man?  It would seem then that appearance won't necessarily be useful.  So perhaps assertions are all the law would be able to latch onto.  I have a beard.  If I say that I identify as a woman, would I have the legal right to use the "women's" bathroom?

These may not seem particularly important concerns where public restrooms are concerned--well, I suppose they may be to those of us concerned, perhaps unduly, with bathrooms--but the law is ubiquitous in our society, as are litigants (and, yes, lawyers) and I think that eventually they must be dealt with in the law of gender.

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